Ernst v. Hudson River Railroad

When this case was here on a former occasion, a new trial was granted on the ground that a nonsuit had been refused, upon a state of facts, of the truth of which

It seems that the plaintiff was surprised on that trial by proof, which she probably had no reason to expect, but which was not repeated on the last trial, when she was prepared with evidence to meet it. The prevailing opinion assumes—and we are at liberty, and perhaps bound, to suppose that the testimony of Simmons, Butler and Waltemyre, whom the defendant did not call on the last trial, justified the assumption—that Ernst was intoxicated on the occasion of the collision; that he drove so carelessly by the way that he nearly tipped over; that he was cautioned at the time by the person riding with him to drive more carefully; that he was partially deprived of the use of his ordinary faculties; that he knew the stated times for the passage of the trains; that this was, in fact, a regular train, on its stated and customary time; that it was notoriously due at that hour; that Dearstyne’s hotel, at which Ernst stopped, was 150 feet east of the track; that he started from there at a rapid rate of speed; that other persons heard the train coming at quite a distance; that four of them, after he started from the tavern, respectively called to him in a loud voice to stop, several times each; that quite a number of persons saw the approach of the train; and that he had an open view of it, nearly all the way from the hotel to the crossing, for a distance of a hundred rods from the highway on which he was riding. ( 24 How., 102 , 108, 110.)

The testimony of these, three men, then given and now withheld, explains the fqrmer decision that, upon such a state of facts, the plaintiff should have been nonsuited. It also explains why that decision was by a divided court. Such testimony, though not met by a point-blank contradiction, was too improbable in its nature, and too inconsistent with the other facts proved, either to obtain credence with the jury, or to commend itself to the full confidence of practiced jurists. It happened that the case, upon the testimony as then given, was heard in this court and the court below, by ten of the judges, only five of whom differed in their conclusions on the question of fact from the jury. It is scarcely to be supposed that they would have hesitated to approve the verdict, if it had been rendered upon the proof presented by the respective parties on the subsequent trial.

It now appears that the prominent facts then relied on to

It now appears that, instead of the testator’s riding a hundred and fifty feet in full view of the engine, the whole distance from the hotel to the track is less than a hundred and thirteen feet, and that he did not see the engine at all, until it emerged from behind the station-house, when the horses were in the very act of going upon the crossing. It also appears that, instead of his having, from the hotel down, except opposite the station-house, an open view of the

There is no pretense now that any one east of the store which adjoins the track either saw or heard the train at all, until it reached the crossing. Ten Eyck and Hunter were at the store, within two or three rods of the rails. Both of them were looking north, and both unoccupied; yet neither of them saw or heard the engine until it was within less than two hundred feet of them, the horses of Ernst being then close to the track and in full motion. It was not seen at all by the witnesses Taylor, Traver, Dearstyne and Yan Denburgh until just before it reached the crossing; and none of them heard it until then, except the ferryman, who was more familiar with the sound, and who detected it first, while looking in that direction from below on the river side, when the cars were within three hundred feet.

The claim that four men were hallooing to Ernst to stop, when he was not yet half way down, is also now abandoned. But two men. hallooed at all, one from the store and one from the station-house, while the team was passing between

The proof is clear and decisive, that the bell was not rung nor the whistle blown until after the collision. Only two of the defendant’s witnesses claimed -that they were; and they were the two employés whose neglect of that duty cost Ernst his life. One of them was a mere boy. Both were impeached on material points, by their own oaths before the coroner’s jury. They had officiated some two months before as engineer and firemen, when Wilds was killed. They were specifically contradicted as to the whistle and the bell, by two of the defendant’s and five of the plaintiff’s witnesses, and they were confirmed by nobody.

On the last trial it also appeared that this was a flag station; that it was the known and uniform practice of the company, whenever there was a train advancing within eighty rods of the crossing on either side, to give notice to the public of its approach by exhibiting, at that point, a white flag if the engine was to stop, and a red flag if it was to pass without stopping. There was neither, flag nor flagman at the crossing; and thus the practice, which was adopted for the security of the traveler, was converted on this occasion into a snare for his destruction.

On this state of facts, there was nothing to justify the imputation of culpable negligence to the testator; and, most manifestly, there was nothing to warrant a court in adjudging his guilt as matter of law, without the intervention of a jury.

In determining the propriety of a nonsuit, we are legally bound to assume the truth of the facts which the testimony of the plaintiff legitimately conduced to prove, though their correctness be controverted by the defendant’s witnesses. (Colegrove v. The New Haven and Harlem Railroad Companies, 20 N. Y., 492 ; Merritt v. Lyon, 3 Barb., 110 .) It is

The testator was lawfully upon the public highway. The right he had to use it was as perfect as that of the defendant to cross it. In the exercise of his legal privilege he did not expose others to injury, and was charged with no duty of extraordinary vigilance. The defendants exercised theirs, with agencies imminently perilous to human life, and they were under a correlative obligation to use them with the highest degree of care. As the highway was nevér dangerous, except when they made it so by driving their engines across it, and as they never crossed it without some degree of jeopardy to the wayfarer, the law provided for the security and protection of the citizen, by requiring the defendants to give special and public warning, whenever their engines approached the crossing.

The rights of the people of Rensselaer in their own highways are not subordinate to those of the railroad-company. If the traveler is warned of the approach of an engine-by the customary signals, or if by other means he is made aware of its proximity, it is his duty to avoid exposing himself to injury. If he advances on the open highway, with no cars in view, and no indications of their approach, either by signal or otherwise, he is at liberty to pursue his way, without incurring the imputation of breach of duty to a wrong-doer.

The only condition of the right to redress for a wrong of this description is, that the party aggrieved be free from culpable negligence; and he is not chargeable with such negligence, unless he fail to exercise ordinary care and vigilance to avoid the injury of which he complains. There has been some diversity of judicial opinion as to what ordinary care and vigilance demand of a party, upon a given state of facts; but, that-this is the uniform standard, by which to test the right of the plaintiff, has been too often adjudged to be open to further discussion.

The rule is simple, practical, and easy of application. “ The question is,” as. this court said, when the case was before it on a former occasion, “ what would a majority of

The degree of care which men of common prudence would be likely to observe in a given case must be determined with reference to all the attendant circumstances. An injury by an engine i/n motion would necessarily be of a grave and serious character; but at a distance of eighty rods from the crossing, it would be as harmless to the wayfarer as the rail over which he drives. It is not unusual in argument to confound the seriousness of such an injury, when it occurs, with the probability of its occurrence, and to assume that the same degree of vigilance is demanded when the engine is not within the range of sound or vision, as when it is seen in close proximity, or public warning is given of its approach.

The measure of precaution which ordinary prudence suggests is in due proportion to the probability of danger. When a train is seen or known to be close at hand, a discreet man would stop until the danger is past; but to stand waiting in front of a public crossing, with no reason to believe that there is an engine within a quarter of a mile, would indicate overcautious timidity, and would seem to most men puerile. On such subjects, as on all others, men exercise their reason, and do not yield to childish apprehensions of distant engines or unloaded guns. When they draw near a railway crossing, and the flagman gives no warning, when no sign or sound indicates the presence or approach of a train, they assume that they may safely cross, and proceed quietly on their way. If, in such a case, an engine, with muffled bell, rushes upon them too suddenly for escape, the wrong is due to those who falsely assured their safety by withholding the usual warning.

The citizen who, -on a public highway, approaches a railway track, and can neither see nor hear any indication of a moving train, is not chargeable in law with negligence, for assuming that there is no car sufficiently near to make the

In the present case, the defendants not only misled the testator by not exhibiting the flag at the crossing, in accordance with the uniform custom when an engine was near, but also by approaching the highway illegally, neither sounding the whistle nor ringing the bell as they advanced. This was an act in open defiance of a public statute, enacted for the protection of the traveler. It was a flagrant breach of duty to the passengers, whose safety it jeopardized, to the stockholders, whose property it imperiled, and to the testator, whose life it exposed. Its direct tendency was to put him off his guard, to disarm his vigilance, and to produce a false sense of security. To transfer the blame to him, would be to screen the wrong-doer at the expense of the victim. It is

In this case, the parties inculpated have been sworn. Ernst, of course, could not confront them; but we are to judge him in the light of the evidence, by the ordinary rules which govern human action. He was a man of business, in the vigor of middle life, and in the full possession of his faculties. He was a man of family and of character, of experience and of judgment. He had no apparent motive or inducement to make a wanton sacrifice of his life. He had the ordinary instincts of humanity. If, on this occasion, he did anything which he ought not to have done, or left undone anything which he ought to have done, it was in the brief interval of nineteen seconds.

It is said he should have looked north before he drove down the street, which the defendant, by violating the statute, could convert into a cul-de-sao to the traveler. That was precisely what he did. In turning his horses around to drive from Broadway into Rensselaer street, he necessarily faced to the north and west, thus commanding a view of the track directly in front for a distance of some twenty rods. He did not see the cars, for the simple reason that they were not there. They were still behind the hill, and nearly sixty rods northeast of the crossing.

It is claimed that he started at a high rate of speed; but the proof is, that he started on a walk; that he went down Rensselaer street on a slow trot, and that he did not quicken his gait until, as he approached the track, he was beckoned to hasten on to the ferry-boat, which was .waiting for him at the landing.

It is also said that he should have been on the look-out for the flag, uniformly displayed at the crossing when a train

The plaintiff is reproached with the fact that her husband had a shawl round his neck. It is the ordinary precaution, on a cold winter morning, of every traveler who has one to wear, and it was no more a breach of duty to this railroad company, than it would have been if he had worn a fur cap or a second overcoat.

It is claimed that he should have listened for the whistle and the bell. He did ; and the fact that neither was sounded, was a further assurance by the defendant that there was no engine- in motion within eighty rods of the crossing.

It is also claimed that he should have stood up in "his sleigh. He owed no such duty to the defendant. It would be scarcely more absurd to hold that a footman should climb a tree or mount a fence before crossing, to assure himself that the company was not breaking the law, by sending an engine without signals, to run over travelers on a public highway.

It is insisted that he ought to have looked before him, and on both sides as he advanced. He did, for he is proved to have been a man of clear vision, and he could not avoid so looking, except by closing his eyes. He was sitting on the bottom of his sleigh, and, of course, his range of view was essentially limited; but to say that he did not or could not see whatever was within that range, would be in direct hostility to the proof. It would be as idle as it would be to assume that one who is driving down the center of State street, cannót see that there are buildings on both sides of the way—or that a Hudson river pilot cannot see both shores of the river in front of him, without turning his head back and forth in the wheel-house.

It is said that he should have observed the man who was

It is claimed that he was bound, by an inflexible rule of law, to see, to hear and to understand the two persons who hallooed; one from the station-house, and the other from the store, as he was passing between them, There is no such rule of artificial presumption, and we see no reason for its adoption, if we were' at liberty to change the law of evidence. It would be an arbitrary legal intendment on a pure question of fact, without reason or truth to commend it. We have no authority to invent rules for the purpose of sMelding wrong-doers. It was a question of fact for the jury, whether the testator saw and heard these men. His advanced position and his winter attire did not favor a lateral view. It is obvious that he did not hear what they said, for it was heard by no one else; and they were speaking simultaneously from opposite sides of the street. ¡Neither of them called him by name; and if Ms attention was directed, as it naturally would be, to the movement of his horses, and the steep descent to the ferry-boat directly in front of them, he probably assumed that the men were speaking to each other across the street, an incident of ordinary occurrence in a country village. It is quite probable, too, that he heard simultaneously the rush of the train, as all this occurred witMn a few seconds of the fatal collision. His horses were under full headway; and every one who is accustomed to drive knows the difficulty of controlling even a single horse, when brought suddenly in presence of an engine, rushing upon-Mm at the rate of forty miles an hour. It is proved and undisputed that his horses were frightened; that they sheered southwardly on the track, and that he struggled, ineffectually, to rein them back. The evidence establishes an adequate cause of death in the defendant’s wrong.' It affords no warrant for imputing to the testator the guilt of complicity in that wrong.

“ He had a right to assume that, in propelling their cars, the defendants would act with appropriate care; that trains would approach the crossing at proper speed; that the usual signal' of approach would be seasonably given; that the managers of the train would be attentive and vigilant; that the flagman would be at his post and guard the crossing on the arrival of trains not intending to stop. Ordinary prudence scarcely dictated that he should so have conducted as to protect himself against the culpable acts and omissions of duty of the defendants’ employés, in propelling a train of cars past a known station, and across a crowded thoroughfare, at the speed of forty miles an hour, ringing no bell, sounding no whistle, disregarding the look-out, and having no flagman on duty to warn of impending danger. Seeing no flagman, and hearing none of the usual signals of the approach of a train, it was not unreasonable or imprudent to conclude that no train was approaching, and that consequently there would be no danger in passing over the track. Besides, the tendency of a neglect by the employés of the company to give proper notice of the approach of the train, was to cause the deceased to be less attentive than he otherwise would have been. He was, by the negligence of their employés, in a degree thrown off his guard, and induced to attempt to cross the track apprehending no danger. The presumption is irresistible that he would not have taken a step toward hazarding his life, if he had been made aware, by the usual signals, of the proximity of the train. It is by no means clear that he did not see the train after getting west of the station-house, but too late, in the excitement and confusion of the moment, to have so controlled his horses as to have avoided the collision.”

The dernier claim of the appellant, all other defenses failing, is, that the testator was guilty" of culpable negligence, in not listening for and hearing the rumble on the rails, of a train which he had no reason to expect, and which gave no signal of its approach. That he did not hear it in time to

This theory is founded on the incidental opinions expressed by two of the witnesses, not as to the distance this train might have been heard, under the actual circumstances and with the intervening obstructions, but on the general question how far it might be possible to hear a train approaching, when omitting the customary signals in violation of law. Neither of them professed to speak from actual knowledge or observation, and their estimates were widely different. One thought it might be detected at a distance of one or two miles, and the other that it would not be audible, when the whistle, would be, at a distance of 'seven or eight rods. It is obvious that speculative opinions, on such a question, scarcely rise to the grade of evidence. The distance at which the approach of a train can be heard, without the signals, must depend on a great variety of circumstances, such as the structure and condition of the particular rails, the firmness of the ties, the size of the train, the direct or winding course of the track, the condition of the atmosphere, the direction and force of the wind, the shutting off of steam, the proximity of the listener to the line of the rails, the prevalence of other sounds, the acuteness of the observer’s hearing, the depression or elevation of the track, the vicinity of valleys, woods and hills, the hour of the day or night, the comparative silence of the country, or the hum and bustle of city life,- and the vicinity of steamboats, factories and public works. Mere speculation on the general question, without reference to these and other like conditions, is plainly idle and illusory. It is proved, as matter of fact, that though such a number of witnesses were present on this occasion, each under more favorable circumstances for hearing it than the testator, the practiced ear of the ferryman, who listened daily for the approach of the trains, did not catch the sound until the engine was within three hundred feet; Taylor, Traver, Ten Eyck, Hunter and Van

It was because the approach of a railway train is stealthy and imperceptible, and because the sound is not readily distinguishable from others associated with no danger, that, to secure the traveler at once against needless apprehension and needless exposure, a statutory mandate was, given to every such company in this State, to approach no public highway crossing with an engine, without public and distinctive signals of danger for a distance of eighty rods before passing such crossing.

The duty is plain and absolute. The company which violates it does so at its peril. If its agents are faithless, it should dismiss them. If its officers choose to disobey a law for the protection of human life, or to tolerate its violation by their subordinate agents, the remedy is in the hands of the stockholders, by selecting those who will respect our public statutes. When the illegal act results in the death of a citizen, the company must respond, unless he has been guilty of a breach of duty which contributed to his destruction. He is not guilty of such breach of duty when he assumes, in the absence of any indication to the contrary, that the company obeys the law, and that no engine is advancing to the crossing, within a distance of eighty rods, without public signals of its approach. If he is deceived by the unlawful omission of the signals, the wrong is not his, but theirs. The illegal act of the company does not, however, justify him in encountering the risk of crossing, if he sees or hears the approach of the engine, or is otherwise notified of its presence in season to avoid the peril. In that case he is guilty of culpable negligence, and the company is relieved from the responsibility of causing his death. But it is no defense to the wrong-doer that though the victim did, not see or hear the engine and was not notified of its approach in time to avoid the collision, he might have seen

The usual argument in favor' of the theory in question is, that trains are constantly passing and repassing at every railway crossing. Certainly, we are not admonished of this by the constant ringing of bells; and every man of ordinary observation knows the fact to be otherwise. • If ten regular trains a day run over a given highway, they render the crossing unsafe when -they pass, and only then. It is free from danger' except, at most, for twenty minutes, in the aggregate, of each twenty-four hours; and the traveler is 'safe against exposure at those momentary intervals, if the company obeys the law and rings the bell. If it will not do that, it has no cause of complaint against the wayfarer whom it voluntarily misleads. In such a case, the language of Chief Justice Beardslet is appropriate: “Aman is under no obligation to be cautious and circumspect toward a wrongdoer.” (Tonawanda R. R. Co. v. Munger, 5 Denio, 266 .)

It is not true that a traveler on a public thoroughfare is guilty of culpable negligence, as matter of law, if he does not stop to listen, or look up and down the .track before he goes over a crossing. The proposition is in direct conflict with repeated adjudications in this and in other courts. Whether such an omission is culpable, depends upon the facts and circumstances of each particular case.

There is a class of cases, in which the proof of the plaint

In the case of Brown v. The New York Central R. R. Co., decided at the last June Term, we held that no culpable negligence was established, though it was proved by the driver of the coach demolished by the collision, that he did not look in the direction from which the cars were approaching until his horses were on the track, the usual signal of danger not being given as they advanced to the crossing; and this, though it appeared in evidence that, if he had looked before, he would have seen them in season to avoid the collision. ( 32 N. Y., 597 .)

The doctrine of that case was unanimously reaffirmed upon a Eke state of facts, at the last December Term of this court. (Stillwell v. New York Central R. R. Co.)

In the earHer case of Megrath v. The Hudson River R. R. Co., the same rule was clearly announced. “ It is not always negligence,” said the court, •“ to cross a railroad track at times when a train is not due, or cannot reasonably be expected to pass; nor to cross a railroad track without looking for a train, when no signal of its approach is given by the ringing of a bell or otherwise.” ( 32 Barb., 147 .) So, also, in the case of Warren v. The Fitchburgh R. R. Co., it was held by the Supreme Court of Massachusetts, a State in which no undue rigor of intendment is supposed to prevail on this subject, that crossing a railroad track, without looking to see if a train is coming, is not conclusive proof of want of care. ( 8 Allen, 227 .)

In the case of Fero v. The Buffalo & State Line R. R. Co.,

The question whether the plaintiff was free from negligence, in ordinary cases of this description, is one of fact to be determined by the jury, under appropriate instructions, and subject to the revisory power of the courts. Occasional instances occur, where the proof of misconduct is so clear and decisive that the judges are bound to pass on the question of negligence as matter of law. It is a mistake, however, to suppose that the decisions made, from time to time, in these two classes of cases, conflict with each other, or. involve any departure from the settled rules of law. Where the question arises on a state of facts, on which fair-minded men may rationally arrive at opposite conclusions, the issue is properly submitted to the jury.. Where, as sometimes happens in exceptional cases, the injury is traceable to clear and unquestionable misconduct on the part of the plaintiff, it is the plain duty of the court to apply the law to the facts without the intervention of the jury. In the present case, there is á renewal of the attempt so often made, to extend the exceptional rule to all classes of cases. It is our province to uphold the law, and not to alter it. We believe it to be wise and just; but, if we deemed it otherwise, we have no authority to subvert it. We should be restrained from making the innovation proposed, not only by our own repeated adjudications, but by that time-honored and elementary maxim on which our system of jurisprudence is founded: Ad questionem facti non respondent judices—ad quesUonem legis non respondent jwrctrtores.

The views of this court as to the right of the party claiming redress, to have the question whether he was free from negligence determined, ordinarily, by the jury, have been repeatedly expressed with great clearness and emphasis.

In the case of Keller v. The New York Central Railroad Company, Judge Mason delivered the opinion of the court, and after citing the foregoing exposition of the rule, he proceeded to say:

“ What constitutes negligence in such cases, is determined by an inference of the mind from the facts and circumstances of the case; and, as minds are differently constituted, the inference from a given state of facts and circumstances will not always be the same. I admit that the facts may be so clear and decided, that this inference of negligence is irresistible, and in every such case it is the duty of the judge to decide; but when the facts, or the inference to be drawn from them, are in any. degree doubtful, the only proper rule is, to submit the whole matter to the jury under proper instruction.” ( 26 How., 177 .)

Similar views were expressed by Judge Denio in the case of Hagan v. The Eighth Avenue Railroad Company, and by Judge Selden in that of Bernhardt v. The Rensselaer and Saratoga Railroad Company. It was said by the latter, with the precision and perspicuity which mark all his judicial

The struggle of defendants to inaugurate a different rule, and to induce the courts to resort to artificial refinements for the protection of wrong-doers, is, perhaps, excusable in those who are impatient of legislative restraint. There is an unfortunate and growing tendency to regard human life as of secondary importance, in comparison with the objects of commercial and corporate enterprise. The aid of the courts is invoked to annul by indirection the force of general laws. Suits and appeals multiply in the constantly increasing ratio of reckless injuries, which nothing could tend more to encourage than this theory of immunity from civil damages, .on the assumption, as matter of law, that a party, over whom an engine is driven, is culpable for not keeping out -of the way, and that the question, whether' he was really guilty of negligence, is not one of fact for a jury.

If it be true, as is sometimes intimated, even from the bench, that false verdicts are occasionally rendered on questions like this, the remedy is to set them aside, and not to usurp the prerogative of the jury. Even among the cases which have been held so plain as to justify a nonsuit, there have been few in which the judges have not themselves dis

The judgment should be reversed, and a new trial ordered.

On the 29th day of December, 1855, Henry Ernst, while driving his horses before a lumber sleigh, came into collision with the defendants’ cars, when crossing a highway in the village of Bath, in the county of Rensselaer. The plaintiff is the executrix of the said Ernst. The case has been tried three times. Upon the first trial the plaintiff was nonsuited. This nonsuit was set aside by the General Term of the third district, and a new trial granted. ( 32 Barb., 159 .) The second trial resulted in a verdict of $2,500 for the plaintiff. The judgment was affirmed by the General Term, but, upon an appeal to this court, the judgment was reversed and a new trial ordered. ( 19 How. Pr., 97 .) On the third trial, at the close of all the evidence, the court directed the plaintiff to be nonsuited. The defendants asked for this nonsuit on

In making this decision at the circuit, the judge necessarily decided that, upon the testimony given, and in its .most favorable aspect, and conceding to the plaintiff the benefit of all doubtful or disputed questions, a verdict for the plaintiff could not have been sustained, but would have been set aside upon presentation to the Supreme Court. If such shall be found to be the result of the evidence, the judgment must be affirmed; but if a finding of the jury in favor of the' plaintiff could have been sustained, then the judgment, must be reversed.

The only questions of fact which it will be necessary to examine are those of negligence: first, of the defendants; and next, of the deceased. The proof is in many respects different from that upon the former trial, as recited in • the opinion given in this court by Justice E, D. Smith, and .that opinion is not, therefore, controlling on the present questions. -On the question of the defendants’ negligence, I entertain no doubt that there was evidence on which the jury would have been justified in finding this point against the defendants. The speed of the train, whether it was on or off time, whether the bell was rung and the whistle blown, as required" by the statute, the absence of a flagman, where one had been accustomed:to be stationed, the failure of the engineer to look ahead to the left, the presence of Waltemyre on the engine, whether authorized or unauthorized, were questions which would have afforded, the jury room for a fair exercise

The principal question, however, arises upon the other point, of concurring negligence on the part of the deceased, contributing to produce the injury. The facts as proved, and as the jury would have the right to infer them to be, exercising their power of finding all doubtful points in favor of the plaintiff, may be stated as follows:

On the day in question the deceased drove his empty sleigh, with a pair of horses, into the village of Bath, intending to cross the ferry to Albany. The boat was not ready, and he fastened his horses in front of the tavern and went in. In a short time notice was given that the boat was ready, his associates crossed over the track in their sleighs, one of them remaining near the track to assist the deceased, the others reaching the boat; the deceased came out, unhitched his horses, sat upon the bottom of his lumber sleigh, drove northerly a few feet, turned westwardly, drove one hundred and twelve feet toward the ferry when he reached the railroad track, when his horses were struck by the engine and cars going southwardly, his horses killed, and himself so badly injured that he died within a few days thereafter. As he drove northwardly from the hotel, he could see up the railroad a distance of thirty rods. After turning westwardly toward the ferry and going a short distance, the view of the road northerly was cut off by the station-house, a building extending about fourteen feet in a direction easterly and westerly. As the deceased approached the train, he was driving on a moderate trot; he was shouted at three times by a man standing on the steps of a store adjoining the track, that the cars were coming, to which he paid no apparent attention. Whether he heard or understood, does not appear. One of the railroad hands east of the track made motions to him, intended by the maker as signals to stop, and one of his own comrades, Simmons, on the west side of the track, made signs intended by him to effect the same purpose. The deceased drove on at a moderate trot till he reached the track, The train, as one witness testi

These are the substantial facts bearing upon the point now under consideration. The cases in this court, of Wilds v. The Hudson R. R. Co. ( 29 N. Y., 315 ); Brown v. N. Y. Central R. R. (32 id., 597); Newson v. The Same (29 id., 383); Steeves v. Oswego & Syracuse Railroad Co. (18 id., 422); and in Pennsylvania, of North Pa. R. R. Co. v. Hilman ( 49 Pa., 60 ), contain the recent expositions of the law now to be examined. The case of Steeves decides that gross negligence in a person injured at a railroad crossing, by a passing train, will defeat his action for damages, notwithstanding the omission of those running the train to ring the bell or sound the whistle, , as required by law. In that case, as the facts are stated in the opinion of the court, there was nothing whatever to excuse the injured party both from seeing and hearing the approaching train; while riding for about a mile parallel with the track and in plain view, he would seem to have closed his eyes and ears, and to have driven across or upon the track as a train was approaching. An injury received under such circumstances, the court held' to be the result of his own reckless indifference, for which he could not recover against the railroad company whose train had caused it.

In the case of Newson v. N. Y. Central (supra), the finding. of the jury in favor of the plaintiff was sustained, although it appeared that the deceased drove and remained with his horses in a dangerous place; that he had a previous difficulty with Ms horses at the same spot, in the earlier part" of the same day, and that he was warned by the flagman that it was dangerous, and that he must not remain there with his horses. It appeared, further, that he was at the

Brown v. The N. Y. C. R. R. (supra) was an action brought by the plaintiff to recover damages for injuries sustained by the plaintiff, by a collision of the defendant’s cars with a stage-coach in which she was a passenger. The view of the track was so much obstructed by houses and trees that a train approaching the village of Albion could not be seen until the traveler was within a few rods of the track. The driver heard the train approaching and stopped his horses. As it was passing, he started up toward the track, when a single car, separate from anything else, also came by. He again stopped, waited till it passed, and again started up. His horses had now reached the rails, when he saw still other cars approaching from the same direction. He whipped his horses with the intention of crossing before they reached him, but his hind wheels were struck, the coach upset and the plaintiff’s injuries received. The separate cars following each other so rapidly, was the result of what is called a running switch, for the purpose of leaving one car out of the train. The defendants claimed that, upon the undisputed facts, the plaintiff’s driver was negligent and that she could not recover. The court held that upon these facts it was not error to leave it to the jury to say whether the driver was negligent; that it was for them to say whether he could more safely have drawn back than whipped up; that, under such circumstances, the party who put him in jeopardy is

■In the case of Wilds, it appeared that the deceased drove his horses upon a railroad where it crossed the street, the bell rang and the whistle sounded; a flagman stood in the center of the street waving his flag; some persons hallooed to him, and other’s tried to seize and stop his horses. He saw the engine coming, but raised his whip and attempted to pass before it. He failed, and was killed. This court ruled, as a matter of law, that no action would lie by his administratrix against the railroad company, on the ground that the exercise of ordinary discretion and prudence by the deceased would have discovered the advance of the train, and would have effectually preserved hini from danger.

The Pennsylvania case decides that it is the duty of a traveler approaching a railroad crossing to look along the line of the railroad and see if any train, is coming, and that if he failed to take such precaution it was more than evidence of negligence—it was negligence itself, and that the jury should have been so charged.

Did the facts, as I have collated them, in the present case, exhibit necessarily an absence of. that ordinary prudence and discretion, or was there such room for question as that the case should have been left to the determination of the jury? The question of negligence is usually one of fact for the jury. (2 Starkie on Ev., 973.) What constitutes negligence is a pure question of fact for the jury to decide. (Ang. on Car.,

■ Another consideration arises upon the point, whether it was entirely certain that the deceased understood, or was bound to have understood, the meaning of the shouts, the motions and gestures that were made to him. The ferry-boat was ready, his comrades had reached it, and were detaining

A third consideration, and which affects those I have already mentioned, and is to be considered in connection with them, was the absence of a flagman, when the deceased attempted to cross the track. A man had usually been stationed there, to warn off travelers by his flag, when there was danger from an approaching train. The deceased was for many years accustomed to travel the road and to cross at this point. How far, then, the knowledge of the deceased extended as to this practice, whether he looked for the flag," and, not finding it exhibited as usual, relied upon its absence as evidence that the track was clear, and that he could safely cross, whether it was prudent and discreet in him to rely upon its absence, or whether he was still bound to exercise other precautions, and to take other means to satisfy himself that no train was at hand, whether his construction of the shouts, gestures and motions was to be affected by this absence of the flag and his knowledge of it, and its effect upon his examination of the road, were, I think, questions that should have been submitted to the jury. Without intending an intimation that the jury should or would have found in accordance with these suggestions, and intending to observe the principles laid down in Wilds and Steeves heretofore cited, I think an error was made in withdrawing the case entirely from the consideration of the jury. There should be a reversal of the judgment of the General Term, and a new trial ordered.

All the judges concurring,

Judgment reversed and new trial ordered.